Tuesday, May 04, 2010

Whom to Boycott?

By Mike Dorf

My latest FindLaw column uses the controversy over Arizona's new law (SB 1070) mandating that state and local govt officials investigate the immigration status of those whom they reasonably suspect of being undocumented as a point of departure for discussing the Fourth Amendment requirement that police be able to articulate the grounds for their suspicion. Based on (popularized accounts of) research in neuroscience and psychology, I suggest that in many instances, suspicions of criminality would be more reasonable if their grounds were not articulated. I nonetheless conclude that the existing requirement is sensible, and that the new law will thus likely lead to problematic applications.

Here I want to address a secondary question. Suppose you are angered by the new Arizona law or simply think it's a very bad law--perhaps because you think it will lead to racial profiling of Latinos (including a great many U.S. citizens) and/or that it will deter undocumented immigrants and even legal immigrants from utilizing much-needed social services. Should you express your disagreement/anger through a boycott? If so, against whom?

We can begin with the easy case. The abortive effort to boycott Brooklyn-based AriZona Iced Tea was based on the false assumption that the company is based in or otherwise connected with the state of Arizona. To be sure, one could imagine a circumstance in which a boycott would be warranted if a company refused to change its name. (Suppose that post-Kristallnacht, the "Hitler toothbrush company," founded in 1894 by Franz Hitler, no relation to Adolph, insisted on keeping its name.) But under the circumstances, it would seem extreme to require the makers of the iced tea to sacrifice the value they've put into their brand.

At the other extreme, boycotts of official Arizona state-sponsored events would be easiest to justify. It is, after all, the sovereign state of Arizona, acting through its legislature, that is responsible for SB 1070. Persons wanting to pressure the state to repeal the law--or simply wanting to direct their disapproval at the most appropriate target--would do best by boycotting official state events.

The difficulty is that most non-Arizonans don't have many opportunities to purchase goods or services from the sovereign state of Arizona. Phoenix Sky Harbor International Airport appears to be municipally owned, and so choosing not to fly to Phoenix (or other AZ airports) would at least target a government entity, although the withholding of your dollars would primarily be felt by the private merchants with whom you would otherwise have transacted business had you traveled to AZ--many of whom may share your disdain for SB 1070.

Likewise, you could choose not to attend baseball games in which your local team is playing against the Arizona Diamondbacks. Their stadium was built with a substantial public subsidy. Yet here too, it's not clear that the message would be targeted all that effectively. The D'Backs roster boasts a good number of Latino players, including starting pitcher Rodrigo Lopez, who was born in Mexico, and Augie Ojeda, a Mexican-American U.S. citizen. Given how many of the best baseball players in the world are from Latin America, it's hard to imagine the owners of any major league team would strongly support legislation that makes it harder to recruit Latin American players. For its part, the players' union opposes SB 1070.

The worry that a boycott aimed at an entity as large as an American state might misfire is hardly unprecedented. For years, people have argued about whether economic sanctions in the international setting do more harm than good (by isolating the targeted regime and thus further radicalizing it) or punish the wrong people. Even then, sometimes the people who would bear the brunt of the sanctions will support them anyway--as was largely true of black South Africans during apartheid--because they judge that the sacrifice is worth it to pressure the regime.

Closer to the present subject, there is at least some reason to think that outside pressure could lead to the repeal of SB 1070: The NFL's decision to relocate the 1993 Superbowl in response to Arizona's rejection of a state Martin Luther King, Jr. holiday is widely regarded as a crucial factor in the state's changing course and recognizing the holiday. A boycott of equal scope could be effective this time.

Does that mean a boycott is a good idea? Here I'm ambivalent. I believe strongly in the right of people, whether acting individually or in groups, to withhold dollars that go to pay for goods and services that are the product of moral wrongs. But there's a difference between 1) choosing not to buy a product because the product itself was immorally produced (e.g., clothes produced with sweatshop labor or made from animal skins); 2) choosing not to do any business with a firm because some of its other business is conducted immorally (e.g., healthy products from a company that also markets cigarettes to minors in countries where that is legal); and 3) refusing to do business with any firm based in a state that has one or more objectionable laws.

While I think that 1) is almost always justifiable, and 2) is usually justifiable, 3) is a harder call. Perhaps this is just a question of degree. If one thinks SB 1070 is truly dreadful--something on par with the Nuremberg Laws or the Pass Laws of apartheid South Africa--then not only boycotts in category 3) would be justified. Then one could even justify 4) boycotting businesses that do business in the offending state. But whether out of impracticality or the sense that the injustice of SB 1070 is less severe, no one seems to be taking that position. That is, we haven't heard calls for a general boycott of all companies that do business in Arizona--i.e., just about all major American (and foreign) companies.

Good question, Eric. Unlike "reasonable suspicion," "lawful contact" is not a term of art. Nonetheless, I think what it means is pretty clear: The police officer (or other state or local official) must be lawfully interacting with the suspect when he develops his reasonable suspicion of unlawful immigration status. But here's the kicker: A lawful interaction could be nothing more than simple observation. So, if the officer is simply walking the beat (lawful) and sees someone whom he reasonably suspects to be an undocumented immigrant, then the officer can ask for ID--at least under the law. As I read the cases, however, reasonable suspicion that someone is an undocumented immigrant does not permit a Terry stop, because it doesn't satisfy the "dangerousness" prong. But the AZ law may well be intended to cover your example.

As to your post, I go back and forth on boycotts in this kind of diluted public atmosphere (vs. direct action against companies).

I think this case is further complicated by the recession. Some of the backlash against immigrants grows out of the (largely incorrect) notion that people from across the border are taking scarce jobs from Americans who are struggling to stay in their homes. Or people get upset when immigrants receive social benefits right as public budgets are massively strapped. So when times are tough, folks look for easy targets.

Given that, outside efforts to harm Arizona's economy could therefore exacerbate the problem.

If one boycotts a food company because of its animal treatment record, the aim is to give a jolt to alternative products. I'm not sure what attacking an entire state on a transactional level really accomplishes -- although like you said, concentrated high-profile instances can have an impact (super bowls, etc.) But in the latter case, I almost think it's the PR humiliation that drives it, more than the economic impact.

I think there may be a key difference between a boycott of Arizona businesses and your reference to international sanctions.

International sanctions have been directed at top-down regimes (e.g., Iran, Cuba, North Korea) where any harm to individuals might reasonably be expected to have little effect on the regime's decision making.

In Arizona, the law in question was enacted by a representative government. Any harm to individuals might reasonably be expected to affect the individual's voting and ultimately the government's decision making.

Even if one thinks that it's okay for the government to order everyone to see the doctor, an order to exercise does appear to go to far. It looks a lot like conscription, which, if justified in wartime, is still extraordinary. Further, it is not clear how a mandatory exercise regime could possibly be enforced absent something like Orwellian surveillance.

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